An End to the Era of Mass Incarceration?

Reflections on the NAS Report

Lecture by

Jeremy Travis

President, John Jay College of Criminal Justice,

City University of New York

University of Baltimore

September 8, 2015

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Dear Friends:

I am truly honored to be invited to deliver this lecture to the many

scholars and experts in this room.

Our topic tonight is the phenomenon of “mass incarceration” –

the reality that our country has increased the rate of incarceration

more than four-fold over the past generation. The topic of mass

incarceration is a scholar’s delight. Historians, political scientists

and legal scholars are deeply engaged in shedding light on how we

got here. Economists, sociologists, and public health academics

are helping us understand the realities of this unprecedented level

of imprisonment of our fellow citizens. Criminologists,

economists and philosophers are assessing the impact of this level

of imprisonment on public safety, the national economy and civic

participation. Yet before we dive in, I must confess that

maintaining scholarly objectivity is difficult for me. I think this is

one of the most important moral challenges facing our democracy.

Stated bluntly, if this level of incarceration, or anything close to it,

becomes our new normal, I am concerned for the future of our

democratic experiment, our notion of limited government, and

our pursuit of racial justice.

A second admission: although I am an optimist by nature, I am

not optimistic that we can figure this out. I fear that the dynamics

National Academy of Sciences

April 30, 2014

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that led us to this moment are so deeply ingrained in the

American psyche, so embedded in our political realities and so

central to our discourse on crime, punishment, and race that it is

hard for me to imagine an exit strategy. I come to this conclusion

in full recognition of the remarkable political consensus, including

miraculous right-left coalitions, that we must reduce our reliance

on prison as a response to crime. I also come to this with

profound respect for the many individuals, advocacy

organizations and foundations that are committed to that goal.

Stated differently, and bluntly, I believe that reversing course will

require something much more profound than our current reform

strategies. What is required is a deep cultural change. Tonight I

will sketch the outlines of the transformation in our culture that I

think will be required.

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I. The Consensus Report of the National Academy of

Sciences

We start tonight’s exploration of the phenomenon of incarceration

in America by reviewing the findings of the report published last

year by The National Academy of Sciences (NAS)1. This report

reflects the deliberations of a consensus panel of twenty

prominent scholars convened by the National Research Council to

assess the evidence on the “causes and consequences of high rates

of incarceration in the United States.” I was honored to be asked

to serve as chair, and very fortunate that Harvard Sociologist

Bruce Western was named as Vice Chair. For me, the NAS report

provides the foundation for a discussion of our future. Tonight, I

will not dwell on the findings of the NAS report in depth, but call

your attention to the printed materials that have been distributed.

Instead, I will use the key findings to create a narrative of the

nation’s increased reliance on prison as a response to crime.

Before we construct a new narrative for the exit, we must

understand our own history.

These are the five key findings of the NAS report:

1. We have never been here before, and we stand apart

from the rest of the world.

1 Unless referenced otherwise, all citations can be found in the following report: National Research Council. The

Growth of Incarceration in the United States: Exploring Causes and Consequences. Washington, DC: The National Academies Press, 2014.

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From the 1920s to the early 1970s, our country experienced very

stable rates of incarceration (here measured by the state and

federal prison population), averaging about 110 per 100,000.

Then the incarceration rate took off, increasing every year until

2009, rising more than four-fold.

The incarceration rate in Europe (here including prisons and jails)

is much lower, ranging from 67 per 100,000 in Sweden to 148 per

100,000 in the United Kingdom. By comparison, the US rate,

U.S. Incarceration Rate, 1925-1972

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100

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300

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500

1920 1940 1960 1980 2000

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Note: Incarceration rate is state and federal prison population per 100,000

U.S. Incarceration Rate, 1925-2012

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1920 1940 1960 1980 2000

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Note: Incarceration rate is state and federal prison population per 100,000

* Prison and Jail

67

73

77

82

98

100

105

108

148

0 100 200 300 400 500 600 700

Sweden

Denmark

Germany

Netherlands

Austria

France

Italy

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United Kingdom (England & Wales)

USA

Incarceration in U.S. and Europe, 2012-2013 per 100,000 population

5

here including prisons and jails, is over 700 per 100,000, five to

ten times higher than those in Europe.

The punchy taglines used to capture this reality are well-known.

Today, nearly 1 in 100 adults in the United States is in prison or

jail. We are home to 5 percent of the world’s population, but 25

percent of the world’s prison population. No country has a higher

incarceration rate. Our committee captured this reality with our

first conclusion: “The growth in incarceration rates in the United

States over the past 40 years is historically unprecedented and

internationally unique.”

2. We are here because we chose to be here.

How did this happen? How did our democracy embark on a

policy journey that has left us so far outside of both our own

historical experience and the mainstream of other democratic

societies? Our committee had a clear bottom line answer to this

question: we are here because we chose to be here. Our high

incarceration rates are the result of our policy choices, made on

our behalf and in our name by our elected officials. After

reviewing the evidence, we concluded that our incarceration rates

are only indirectly tied to crime rates. Over the period of the

relentless growth in prison populations, crime went up and went

Incarceration in U.S. and Europe, 2012-2013 per 100,000 population

* Prison and Jail

67

73

77

82

98

100

105

108

148

707

0 100 200 300 400 500 600 700

Sweden

Denmark

Germany

Netherlands

Austria

France

Italy

Belgium

United Kingdom (England & Wales)

USA

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down. Yet crime did play an important role in the prison build-up.

The rapid increase in crime rates in the 1960s and 1970s, which

occurred in a period of social upheaval, racial strife and political

unrest, changed the politics of crime in America. “Tough on

crime” strategies became winning political platforms, for district

attorneys, judges and most importantly for legislators. The

balance of power between the branches of government on matters

of punishment shifted as legislatures exerted more control,

judicial discretion was weakened, and executive branch agencies

such as parole boards were stripped of power.

As a result, our state and federal legislators, who ran on “tough on

crime” platforms, delivered on their campaign promises by

enacting “tough on crime” sentencing legislation. In our report

(see chapter 3), we document decade by decade the changes in

Underlying Causes: Crime, Politics, and Social Change

• Crime rates increased significantly from the early 1960s to the early 1980s (e.g., murder rate doubled from 1960 to 1980)

• Decline in urban manufacturing, problems of drugs and violence concentrated in poor and racially segregated inner city neighborhoods

• Rising crime combined with civil rights activism, urban disorder, heightened public concern and tough-on-crime rhetoric from political leaders

Direct Causes: Changes in Sentencing and Law Enforcement

• In the 1980s states and the federal government adopted mandatory guidelines and expanded mandatory prison sentences

• Drug arrest rates increased significantly and drug crimes were sentenced more harshly

• In the 1990s longer sentences were set particularly for violent crimes and repeat offenders (e.g., three-strikes, truth-in- sentencing)

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sentencing policy, all of which had the result of putting more

people in prison, and keeping them in prison longer.

We found that the increase in incarceration rates is roughly

equally divided between two drivers – the increase in

incarceration rates per arrest, basically through mandatory

minimums, and the imposition of long sentences, mostly for

people already sentenced to prison. Of all crime categories, the

increase was greatest for drug offenses. For these crimes, the rate

of incarceration increased ten-fold. An important theme running

through our report is the far-reaching impact of the war on drugs,

particularly on racial minorities.

3. The public safety benefits of the prison build-up are,

at best, modest.

Can we say that the ramp up of prison has had a significant public

safety benefit? After all, if our elected officials promised lower

crime rates by putting more people in prison and holding them

longer, and we observe a significant decline in crime rates, then

hasn’t the promise been kept? Can we justify the means of mass

incarceration as having delivered the ends of public safety? Isn’t

this a criminal justice program that worked?

Our committee recognized that answering this question presents

nearly insurmountable methodological challenges. Put simply, we

Tough Sentencing Increased Incarceration and Contributed to Racial Disparity

• Growth of state prison populations, 1980 – 2010, is explained in roughly equal proportion by (a) the increased rate of incarceration given an arrest and (b) longer sentences

• Although incarceration rates increased across

the population, racial disparities yielded high rates among Hispanics and extremely high rates among blacks

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concluded that there were too many other things going on during

this four decade period to isolate the effect of the prison build-up

on crime rates. Having noted this inevitable lack of scientific

precision, we reviewed the studies that have tried to answer this

question.

Most of those studies show that increased incarceration rates may

have reduced crime, but that the aggregate effect is likely to have

been small. We were more definitive in our assessment of the

evidence on the public safety benefits of the principle drivers of

the incarceration boom. The research on the impact of long

sentences is quite clear: either through incapacitation or

deterrence, these sentences likely had only modest impact on

public safety. Similarly, the literature on mandatory minimum

sentences shows that this use of prison yields very little public

safety benefit. Finally, we looked at the literature in the drug

policy area. The country does not have a measure of drug

offending rates, but we do track the price of drugs and the levels

of drug use. Neither of these indicators moved in the expected

directions. Drug prices have generally dropped not increased, and

drug use has remained relatively constant as the punishments for

drug offenses sky rocketed. Thus, our committee found after a

review of the evidence that the public safety benefit of this

• Increased incarceration may have reduced crime but most studies indicate the effect is likely to be small

• Either through incapacitation or deterrence, the incremental effect of increasing lengthy sentences is modest at best

Impact of Incarceration on Crime

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enormous investment of money, and this unprecedented

deprivation of human liberty, has been modest at best.

4. The financial and social costs of the prison build-up

are likely significant.

The investment in the expansion of the nation’s prisons has been

enormous, now reaching approximately $53.2 billion a year for

state prisons and close to $90 billion a year if jails and federal

prisons are included (see chapter 11). Given this enormous policy

shift and the investment of billions of taxpayer dollars, one might

expect a proportionate investment in research to assess the

impact of this undertaking. Our panel was struck by the paucity

of research on the consequences of the prison build-up.

Yet the early findings are troubling. We devoted two chapters to

the impact of our policy choices on those incarcerated in the

nation’s prisons. The nation clearly did not build enough prisons

to accommodate our policy choices as our prisons are now much

more overcrowded. The psychological consequences of prolonged

incarceration, particularly in solitary confinement, can be

devastating. Nor did we invest commensurate resources in

programs and services. We have also extended the reach of

prisons to a new generation of children who have a parent behind

bars and the evidence points to increased levels of family

Social and Economic Effects

• Prisons became more overcrowded and offered fewer programs, but lethal violence in prison declined

• Men and women released from prison experience low wages and high unemployment

• Incarceration is associated with the instability of families and adverse developmental outcomes for the children involved

• Incarceration is concentrated in poor, high-crime neighborhoods

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instability and adverse developmental outcomes for those

children. The post-release employment prospects for those sent

to prison are poor: compared to others like them, formerly

incarcerated individuals experience lower wages and higher rates

of unemployment. Finally, the high rates of incarceration are

concentrated in a small number of poor neighborhoods, mostly

communities of color, that are already struggling with poor

schools, housing shortages, high crime and high rates of

unemployment. Now these communities are also bearing the

brunt of society’s unprecedented policy choice to send more of

their residents to prison than ever before, keep them in prison for

longer than ever before, in more crowded conditions, provide

fewer programs and prepare them less well for their eventual

return home.

By definition, our ability to assess the long term impact of a four-

fold increase in incarceration rates will take more than a

generation. Hopefully twenty or thirty years from now, the body

of research reviewed by our successor NAS panel will be much

more robust. But our committee strongly urged the federal

government, the nation’s universities and private funders of

research to start now to support research so we can better

understand the life inside our nation’s prisons, the individual

experience of being incarcerated, and the ripple effects through

families and communities who are feeling the after-shocks of our

nation’s decision to incarcerate so many people. If this were any

other policy domain, we would know so much more about the

human, financial and social consequences of our choices.

Based on our assessment of the evidence, our committee reached

this conclusion:

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The United States has gone past the point where the numbers of

people in prison can be justified by any potential benefits.

5. We have lost sight of important normative

principles.

Notwithstanding the power of our conclusion that the public

safety benefit is likely modest and the costs are likely significant,

the NAS committee did NOT view an assessment of the growth of

incarceration in America solely as a simple matter of cost-benefit

calculation. We recognized that sentencing policy – or more

broadly, the policy response to crime – necessarily involves

normative questions. We concluded that the public discourse of

the past generation paid insufficient attention to certain

normative principles and, going forward, we recommended that

these principles should guide our nation’s deliberations regarding

the use of prison as a response to crime.

Chapter 12 (if you read only one chapter of our report, this is the

one) traces the intellectual linage of four principles that are

relevant to these policy deliberations. Each recognizes that the

forcible deprivation of liberty through incarceration is an

awesome state power that should be exercised with care.

Main Conclusion

The U.S. has gone past the point where the numbers of people in prison can be

justified by any potential benefits.

According to the best available evidence:

• The crime reduction effect is uncertain; most studies show small effects

• The social and economic consequences

may have been far-reaching

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The first two principles limit that power. The principle of

proportionality, well known to every law school student, holds

that sentences should be proportionate to the seriousness of the

crime. The second, the principle of parsimony, my favorite of

these, holds that the state is not authorized, in our name, to

impose pain on a member of our society beyond that required to

achieve a legitimate purpose. Law school students will also

recognize this as the “least restrictive alternative” principle of the

Model Penal Code. In our committee’s view, in our country’s rush

to be tough on crime – by enacting statutes that made long

sentences longer, imposed mandatory minimums for minor

offenses, and launched the war on drugs – these principles failed

to serve as constraints on the reach of state power.

The third principle recognizes an aspiration that we should

respect the human dignity of individuals sent to prison and the

conditions of confinement should not be so severe as to violate

their status as members of our society when they return. This

value statement is reflected in the Eighth Amendment

jurisprudence of the Supreme Court, the mission statement of

corrections professionals, and the declarations of international

human rights organizations. Finally, our panel traced the

literature of the principle of social justice and recommended that

our society view prisons as pillars of justice, as public institutions

From Evidence to Policy: Guiding Principles

To draw implications from the empirical research we elaborate four principles of jurisprudence and good governance:

• Sentences should be proportionate to the seriousness of the crime

• Punishment should not exceed the minimum needed to achieve its legitimate purpose

• The conditions and consequences of imprisonment

should not be so severe or lasting as to violate one’s fundamental status as a member of society

• As public institutions in a democracy, prisons should

promote the general well-being of all members of society

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that promote the broader well-being of our society. Stated

differently, prisons should not serve to diminish the status of a

particular segment of our society. More specifically, our panel

recommended that prisons be opened to public inquiry and

accountability for results, including access for journalists,

researchers, and legislative oversight, consistent with the

operational requirements of the institution. In short, our panel

strongly advocated that we recognize that policies that result in

deprivation of liberty should be informed, and guided by, a

normative framework and subjected to independent inquiry.

With these guiding principles in hand, and reflecting our

assessment of the evidence, our panel then recommended that the

United States should reduce incarceration rates. Specifically, we

recommended reforms to the policies that drove the prison-build

up, mandatory minimums, long sentences, and drug enforcement.

We also recommended that the nation improve conditions for

those incarcerated and reduce the harms experienced by their

families and communities. Finally we took a broad look and

recommended that the country recognize that with fewer people

in prison there would be an increase in service needs in those

communities.

Policy Recommendation

The United States should take steps to reduce incarceration rates

This requires changes in:

• Sentencing Policy: Reexamining policies for mandatory minimum sentences, long sentences and

enforcement of drug laws

• Prison Policy: Improving the conditions of

incarceration, reducing the harm to the families and communities

• Social Policy: Assessing community needs for

housing, treatment, and employment that may increase with declining incarceration

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II. Looking Beyond the National Academy of Sciences

Report

Now, let’s switch gears, gaze into our collective crystal ball, and

ask ourselves whether we can reasonably expect that these

reforms will happen. I have already previewed my answer to this

question, but let me explain. Certainly there are reasons to be

optimistic. The rate of incarceration has been dropped slightly

over the past few years. We are seeing a new left-right coalition

that has embraced the common goal of reducing the size of the

prison population. The emergence of a new organization –

cleverly called Right on Crime – with signatories that include

Grover Norquist, Newt Gingrich, Jeb Bush and Pat Nolan – is

making waves all across the country by advocating sentencing

reform.2 Solidly conservative states such as Texas, Georgia,

Mississippi and Alabama, with Republican governors and

Republican legislatures, have taken steps to cut back on their

prison populations. An impressive array of major national

foundations – including the Open Society Foundations, the Laura

and John Arnold Foundation, the MacArthur Foundation, the

Koch Brothers, Pew Charitable Trusts, the Public Welfare

Foundation and the Ford Foundation – have taken dead aim at

reducing our reliance on incarceration.

In recent years, a number of organizations and individuals have

embraced a specific goal of reducing the prison population by half.

Elsewhere, I have written that the time is ripe for a “brave

governor” who will step forward to embrace the goal of cutting the

prison population in half.3 Glenn Martin, the visionary founder of 2 Right on Crime; (retrieved from the World Wide Web on February 20, 2015: http://rightoncrime.com/the-

conservative-case-for-reform/). 3 The “brave governor” idea holds that, with crime rates at record lows, prison costs straining state budgets, and a

new consensus that we must reverse course on sentencing policy, now is the time for a brave governor to step

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JustLeadershipUSA has cleverly coined the phrase “50 by 30”,

setting his sights on 20304. The American Civil Liberties Union

has received $50 million in funding to achieve this goal by 20205;

Van Jones of Rebuild the Dream has provided his support for a 50

percent reduction in ten years.6 Just last month, Dannell Malloy,

the Democratic governor in Connecticut, called the prison build-

up a “failed experiment” and pledged to reduce his state’s prison

population.7 Bruce Rauner, the new Republican governor of

Illinois, set a specific goal of reducing his state’s incarceration rate

by 25 percent by 2025, sounding much like a “brave governor”.8

Add to this the fact that states like New York have experienced

significant prison declines and one can understandably become

not just optimistic but positively giddy about the prospects for

reducing our prison population.

So why the pessimism? In my assessment, the euphoria

occasioned by the slight down-turn in incarceration rates is

premature and the reforms that we celebrate are nibbling around

the edges. The nation’s prison population has remained high.

Much of the recent decline can be attributed to the court-ordered

population reductions in California. Marc Mauer of the

Sentencing Project calculated that based on the 3-year prison forward and pledge to enact legislation that will reduce his or her state’s prison population by half in ten years. I first framed this concept in a speech in Milwaukee in 2009, and again in an article in Criminology and Public Policy. Jeremy Travis, Building Communities with Justice: Overcoming the Tyranny of the Funnel (Keynote address delivered at the Marquette Law School Public Service Conference on the Future of Community Justice in Wisconsin on February 20, 2009). Travis, J. (2014), Assessing the State of Mass Incarceration: Tipping Point or the New Normal? Criminology & Public Policy, 13: 567–577. doi: 10.1111/1745-9133.12101 4 About Mission Statement, JustLeadershipUSA (retrieved from the World Wide Web on February 20, 2015:

https://www.justleadershipusa.org/about-us/ 5 American Civil Liberties Union, “ACLU Awarded $50 Million by Open Society Foundations to End Mass

Incarceration” (November 7, 2014). 6 The Dream Corps, “Sacramento Bee: Finally, a Movement to Roll Back the Prison Industry” (February 12, 2015).

7 The Wall Street Journal, "Connecticut Gov. Dannel Malloy Proposes Changes to Drug Laws" (February 3, 2015).

8 "Executive Order Establishing the Illinois State Commission on Criminal Justice and Sentencing Reform" (retrieved

from the World Wide Web on February 20, 2015: https://www.illinois.gov/Government/ExecOrders/Pages/2015_14.aspx).

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decline through 2012, it would take 88 years to get back to the

prison population level (number, not rate) of 1980.9 Even the

recent decline may be illusory. The Pew Charitable Trust has in

fact predicted that the incarceration rate is expected to rise three

percent by 2018.10

This sobering realization should not surprise us. As Michael

Tonry points out in the most recent issue of Criminology and

Public Policy, “No state has repealed a three-strikes, truth-in-

sentencing, or LWOP [life without parole] law….. No statutory

changes have fundamentally altered the laws and policies that

created the existing American sentencing system, mass

incarceration, and the human, social, and economic costs they

engendered.”11 Is it possible that mass incarceration is the new

normal?

Recall the first finding of the NAS report: we are here because we

chose to be here. The four-fold increase in incarceration rates was

caused by long sentences made longer, mandatory minimums,

and the war on drugs. Which politician is willing to stand up to

say that prison terms for violent offenders should be cut back, or

that people now sentenced to mandatory minimums should no

longer go to prison, or that severe punishments for drug sales

should be cut back? Which prosecutor or judge running for office

will take a principled stand saying that we have too many people

in prison? If tough on crime rhetoric has been so successful, and

the public believes that high incarceration rates have produced

record low crime rates, why would anyone running for office undo 9 Huffington Post, "Can We Wait 88 Years to End Mass Incarceration", (December 20, 2013).

10 States Project 3 Percent Increase in Prisoners by 2018. November 18, 2014 (retrieved from the World Wide Web

on February 20, 2015: http://www.pewtrusts.org/en/multimedia/data-visualizations/2014/states-project-3-percent-increase-in-prisoners-by-2018). 11

Tonry, M. (2014), Remodeling American Sentencing: A Ten-Step Blueprint for Moving Past Mass Incarceration. Criminology & Public Policy, 13: 506. doi: 10.1111/1745-9133.12097

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this winning formula? And if one of the arguments for reducing

the prison population is the damage being done to the minority

communities of our country, how will that argument play to the

majority who will have the strongest voice in selecting our

political leaders?

Some have urged me to be more patient, saying that our

democracy will self-correct. I have my doubts, but I would like to

imagine a different future for our country when we do not lead the

world in the rate of incarcerating our fellow citizens. To get there,

we must attack the breeding grounds of the political reality that

brought us to this current situation. I think of this in terms of

cultural change, which is a necessary precondition to political

change. So for the remainder of this talk I would like to imagine a

different world. I will set aside my pessimistic analysis and once

again look at our glass as half-full.

In my view, achieving this cultural change will require five

interrelated activities.

1. Understanding American Punitiveness.

The NAS report traced the origin of the prison build-up to the

turbulence of the 1960s and 1970s when rising crime rates,

combined with social and racial unrest, provided fertile ground

for the “tough on crime” political strategies. But the panel could

not answer a deeper question: why did America become so

punitive? Why did our democracy respond to the fears and panic

of that era with such an expensive and inhumane policy

prescription that ultimately led to a million more people in

prison? I think we need to look beyond criminal justice policy –

and beyond traditional political and historical analysis – to

answer this question.

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We need to recognize that this punitive reflex has been evident in

other policy domains as well, not just sentencing policy. In our

schools, we have substituted school disciplinary processes with

criminal proceedings for juvenile misconduct. In our immigration

policy, we have decided to detain millions of undocumented

immigrants in a network of prisons not counted in our measures

of incarceration. In our response to the threats of terrorism, we

have enacted policies that significantly constrain the liberty of all

Americans and have subjected Muslim-Americans to special

scrutiny. We have also seen the evidence of our punitive attitudes

in the recent debate on stop-and-frisk policies in New York City

when the excessive use of this legitimate police power was

justified as necessary to keep crime down.

In my view, our efforts to reduce mass incarceration will require a

deep exploration of why our country embarked on this

aberrational experiment in the massive deprivation of liberty. This

inquiry will necessarily require us to confront the racial

dimensions of mass incarceration and the thread that connects

this era with the nation’s unresolved struggle for equal protection

of its laws. In that connection, I am pleased to note that, with

financial support from the MacArthur Foundation, my John Jay

colleagues David Green, Maria Hartwig, and I will soon be

convening an Interdisciplinary Roundtable on Punitiveness in

America. We will bring together philosophers, theologians,

psychologists, political scientists, criminologists and historians,

from America and Europe, for a far-reaching two-day exploration

of this topic. In addition to an edited scholarly journal, we will

also publish a general reader monograph from the proceedings of

the Roundtable. I hope that we find enough fertile ground to

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continue this discussion and to share our findings with a broader

audience of scholars, practitioners and policy-makers.

2. Imagining a Different Future.

One of the missing ingredients in the current debate over mass

incarceration is that we do not have an alternate vision for our

future. We are so focused on the tactical challenges of coalition

building, the hand-to-hand combat of legislative reform, and the

concern about short-term victories that we do not take the time to

say, simply, it need not be so. I think the new rhetoric of the

movement to reduce mass incarceration is powerfully positive:

“Let’s cut the prison population in half!” Though this rhetoric is

welcome, it is not sufficient to overcome the political forces that

sustain the status quo.

What might be more effective? For starters I would point to the

recent success of Proposition 47 in California, which reclassifies

offenses in the penal code for the specific goals of reducing

incarceration; takes and reallocates money from corrections

budgets; and, provides large-scale opportunity for people

convicted of low-level felonies to have these felonies removed

from their old records.12 Many lessons can be drawn from this

success. First, the campaign, brilliantly conceived by a group

called Californians for Safety and Justice, led with the voices of

crime victims – everyday Californians who said that the current

system, with its long sentences, did not deliver the justice that

they sought.13 These victims would rather have seen a system that

dealt with the conditions that led to the crime – the underlying

12

Proposition 47: The Safe Neighborhoods and Schools Act (retrieved from the World Wide Web on February 20, 2015L: http://www.courts.ca.gov/prop47.htm). 13

Californians for Safety and Justice (retrieved from the World Wide Web on February 20, 2015: http://www.safeandjust.org/).

20

mental illness, drug addiction, or poor lighting. They would have

preferred a system that paid attention to their need to recover

from their crimes. Second, the campaign specified alternative

investments of the money now spent on prisons. The referendum

said that the savings would be re-invested in mental health and

drug treatment (65%), K-12 school programs for at-risk youth

(25%), and trauma recovery services for crime victims (10%).

Finally, because of the unique California ballot initiative process,

the campaign was able to bypass the legislative process and

directly reflect the will of the people. On November 4th,

Proposition 47 passed with 60 percent of the vote. Among your

handouts you will find a flyer announcing that Californians for

Safety and Justice Executive Director, Lenore Anderson, and NY

Times journalist Erik Eckholm will be speaking about Proposition

47 at John Jay tomorrow. I invite you to join that conversation.

Only a few states provide for sentencing reform by referendum.

So we need other ways to paint a different vision for the future. In

recent conversations with colleagues in New York, I have

promoted the idea of a community-level conversation that

provides direct input into a new vision for justice. Let’s imagine

that a community with a high rate of incarceration were presented

with data on the cost of imprisonment. They would see that for

some blocks in their neighborhood we now spend over a million

dollars a year to incarcerate the individuals, mostly men, from a

single block.14 We would then provide these community leaders

with a statistical model showing that, for specified reduction in

long sentences those people are serving, hundreds of thousands of

14

The work of Eric Cadora of the Justice Mapping Center in documenting the phenomenon of “million dollar blocks” represents one of the most important conceptual and rhetorical breakthroughs in our public discourse on incarceration policy (retrieved from the World Wide Web on February 20, 2015: http://www.justicemapping.org/archive/26/multi-%E2%80%98million-dollar%E2%80%99-blocks-of-brownsville/).

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dollars could be reinvested. We would then ask them, how should

those dollars be reinvested? More importantly, we would ask

them, for the crimes leading to those incarcerations, how could

our society have responded better? Imagine then that this

conversation includes prosecutors, legislators, police officials,

service providers, and the community residents then asked their

government and civic leaders to find ways to implement this

alternate vision. If we were to carry out this exercise at the

modest level of a 50 percent reduction in incarceration, we would

free up millions and millions of dollars for other public purposes,

including promoting lower rates of crime and providing more

effective support for victims.

A third idea for creating a different vision for the future involves

comparison with the prison systems of other countries. We

Americans are notoriously parochial and the frequent response to

the systems of other countries is: Well, that would never work

here. Or, our criminals are worse than their criminals. Or, our

social safety net does not provide sufficient benefits for people

involved in criminal activity. Or, we have many more guns and

too much gun violence. Or, our racial divide is deeper. Or, ….

I think we need to break through these intellectual blinders and

look carefully at the prison systems of other countries. I applaud

the Vera Institute of Justice for its decision to take a second group

of American policy makers and thought leaders to Europe to study

its prisons. Hopefully, this will become a steady flow of American

experts trying to understand different approaches. It is ironic that

early in our nation’s history, Europeans came to the U.S. to learn

about progressive sentencing and prison policies. Today, we need

to repay the compliment.

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3. Breaking the Gordian Knot of Crime Policy and

Prison Policy

The NAS study reached important conclusions about the nexus

between our high rates of incarceration and crime rates – first,

that the prison build-up was only indirectly caused by crime

increases, and second that high rates of incarceration yielded, at

best, only modest benefits in terms of public safety. Yet every

time we talk about reducing prison populations, that proposition

is still cast in terms of public safety. “Look”, we say, “the

incarceration rate of a specific state has gone down, without an

increase in crime.” I understand the political imperative for

making this statement. But even in political terms, it’s

problematic: what if crime rates go up a few percentage points,

should we halt the prison reduction program? But more

importantly, it is analytically problematic. After all, it was the

promise that more prison would bring about less crime that got us

into this mess in the first place. So we are only repeating a false

premise if we couch a prison reduction strategy as possible only if

crime does not go up.

At the same time that we break the crime-prison nexus, we need

to develop other reasons for reducing the number of people in

prison. The efforts to reduce mass incarceration are often based

in financial imperatives – we simply can’t afford this anymore.

That works to some extent, but beware the return of healthy state

economies. I am heartened by the arguments of libertarians that

our current prison population represents an unwarranted

intrusion of the state on individual freedoms. I resonate with the

argument of small government conservatives who point to mass

incarceration as a striking example of a government experiment

that failed. I value the arguments of constitutional scholars who

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say that the current conditions of confinement violate the Eighth

Amendment’s prohibition against cruel and unusual punishment.

Utilitarian arguments that we need to be cautious to ensure that

we do not jeopardize public safety as we reduce the prison

population only reinforce the view that we needed to put all these

people in prison to produce public safety.

But, to be credible, advocates for reductions in the prison

population need to have a position on public safety. It is the

height of irony, to say the least, that we have so many people in

prison precisely at a time when we have developed a very

sophisticated portfolio of effective crime prevention strategies.

We are now in a position to question the premise of mass

incarceration itself and to ask, “Why do we need to use prison so

extensively to reduce crime? Why not put the intellectual energy

and tax payer resources into effective strategies?”

4. Rethinking the Role of the Criminal Sanction.

This is a challenge to the orthodoxy of the legal community, so it’s

appropriate I raise this challenge in a law school setting. In my

view, we have a golden opportunity to reframe crime policy in

terms of new ideas about the role of the criminal sanction in

producing public safety. Nothing would be a more powerful

antidote to the prison-centric realities of our current crime policy

than the design and implementation of a suite of effective crime

prevention policies that minimize the use of prison. For the past

twenty years, I have been an avid proponent of the concept of

focused deterrence developed by my John Jay colleague, David

Kennedy. This concept envisions the criminal sanction –

including arrest, prosecution, and incarceration – as part of a

larger strategy designed to address specific crime conditions. The

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concept has been successfully implemented to address gang

violence, overt drug markets, and domestic violence. Today, over

50 jurisdictions have joined the National Network for Safe

Communities, the vehicle for implementing focused deterrence

strategies around the country.15

One of the principles of the National Network is to reduce the

unnecessary use of incarceration while reducing crime. This

formulation represents the embodiment of the principle of

parsimony. For focused deterrence work, the instruments of

formal social control are used only in connection with explicit

invocation of the instruments of informal social control, including

the moral voice of communities, the persuasion of family

members, and the positive examples of formerly incarcerated

individuals. Police officers, prosecutors, defense lawyers,

probation officers, judges and corrections officials are not

accustomed to such an embrace of informal social control that is

so explicit and so strategic. They find themselves in unfamiliar

terrain, experiencing a form of professional vertigo. We need to

learn from these experiences and follow these lessons wherever

they lead. These experiences require a rethinking of the role of

the law in influencing behavior.16

These innovations are conceptually important for what they teach

us about deterrence. They are operationally important for what 15

National Network for Safe Communities (retrieved from the World Wide Web on February 20, 2015: http://nnscommunities.org). 16

The principles of focused deterrence have been applied in other settings. The success of Project HOPE in Hawaii is based on similar principles, and also involves minimal use of the criminal sanction. Angela Hawken and Mark Kleiman. Managing Drug Involved Probationers with Swift and Certain Sanctions: Evaluating Hawaii's HOPE. S.l.: U.S. Department of Justice, 2009. In Chicago, the Project Safe Neighborhoods initiative applied focused deterrence ideas with a group of individuals returning from prison, with a 37 percent reduction in homicides during the observation. Tracy L. Meares, Andrew V. Papachristos, and Jeffrey Fagan. Project Safe Neighborhoods in Chicago - Review of Research. In Homicide and Gun Violence in Chicago: Evaluation and Summary of the Project Safe Neighborhoods Program, 2009.

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they can deliver in terms of public safety. But they are also

politically important because they undercut the notion that we

need long prison sentences to produce public safety. But they sit

uncomfortably in the orthodoxy of the laws of criminal sentencing

and traditional notions of the adversarial process. Consequently,

a challenge of the first order for the law schools and legal

academics of the country is to take seriously these advances in

theory and practice and develop a set of legal principles that

reflect their success. This will, in turn, provide policy makers with

a counter-argument to those who say we need so many people in

prison to keep us safe.

5. Pursuing Racial Reconciliation.

Perhaps the most important task we need to undertake is to come

to terms with the implications of mass incarceration for our

country’s pursuit of racial justice. We should not be surprised

with the finding of the NAS report that the increase in

incarceration rates over four decades was highly concentrated

among specific sub-populations. In fact, we found that most of

the increase came from one subpopulation: minority male high

school drop outs. This finding is very sobering. Let me illustrate

it this way.

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For African-American high school dropouts born between 1945

and 1949, the likelihood that they would serve at least a year in

prison before age 34 was 14.7 percent.

For those born a generation later between 1975 and 1979, who

came of age during the prison boom, the risk of imprisonment is

now a staggering 68 percent. Think about it. This analysis does

not reflect the probability of arrest, spending time in police lock

up, being on probation, being suspended from school, or spending

time in jail. This analysis isolates the most severe interaction

between African-American male high school dropouts: being sent

to prison. For this group of our fellow citizens, there is a 68

percent probability of spending at least a year in prison. If we add

the likelihood of other, less severe interactions with the justice

system, we recognize that it would be rare for a male African-

American high school drop-out to be untouched by the

enforcement apparatus of the state.

Remember our earlier conclusion: We have these high rates of

imprisonment because we chose them, because we elected

officials who responded to crime by increasing the use of prison.

Against that backdrop, how can we explain to ourselves that we

have chosen to create a reality in which an African-American man

who drops out of high school faces a 68 percent chance of going to

prison before he turns 35? Certainly we can’t place the total

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blame on these men. Do we have evidence that the offending rate

of this group of our fellow Americans has increased more than

four-fold over forty years? Absolutely not. On the contrary, we

know that we have witnessed a historic decline in crime rates in

all communities, including inner city African-American

communities. I am not saying that these communities do not

have crime problems. Rather I point out the simple statistical fact

that the crime decline has been a widely shared benefit. But this

creates a conundrum: In light of the historic good news of low

crime rates, how can we reconcile ourselves to the historic high

rates of imprisonment – with all the attendant damage for

individuals, families and communities? How can we conclude this

this state of affairs represents our aspirations for justice?

For me, these data lead to only one conclusion: our incarceration

policies – and, more broadly, our criminal justice policies – have

done enormous harm. For young men growing up today who are

living in our inner cities, in communities that are struggling with

poor school systems, poor housing, poor health care, who are not

able to complete high school, their life course most likely includes

time in prison. What have we wrought? How can we possibly

justify this large scale deprivation of human liberty? In whose

name have these policies been adopted? Given that we have the

lowest crime rates in a generation, shouldn’t the residents of

communities struggling with the consequences of mass

incarceration be entitled to demand a peace dividend? Can this

really be the new normal for our democracy, that large numbers of

our fellow citizens will be confined to a permanently diminished

status, long after they pose any elevated risk of criminal behavior,

but still earn less, vote less, suffer the trauma of incarceration, at

higher risk of morbidity, while too often alienated from family and

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friends? At this point in my thinking I hear in my mind the echo

of Alan Paton’s book about apartheid in South Africa, “Cry, the

beloved Country.”17

So when I said at the outset that I feel a moral obligation to find

ways to reduce mass incarceration, it is because of this reality. We

can nibble around the edges, work with politicians to change

sentencing laws, deepen our understanding of punitiveness in

America, even adopt new crime prevention strategies, but one

imperative – a moral and historical imperative – remains: We

need to come to terms with the racial damage caused by the era of

mass incarceration. We need to imagine and then carry out a

program of racial reconciliation. We need to admit our

government – acting in our name – has done great harm. We

need to accept responsibility for that harm, and find ways to

alleviate the consequences.

I do not pretend to know the way forward toward reconciliation.

Yet I am heartened by the decision of the Department of Justice,

under the inspired leadership of Attorney General Holder, to

provide funding for the creation of a National Initiative for

Building Community Trust and Justice, to be led by a consortium

including John Jay College, Yale Law School, UCLA and the

Urban Institute.18 One of the key activities of the National

Initiative will be to work with five pilot sites across the country to

explore the pathway toward reconciliation, with a focus on the

police and communities of color. We will soon convene at John

Jay a group of national and international experts who have

experience with reconciliation processes in other contexts and

17

Alan Paton. Cry, the Beloved Country: A Story of Comfort in Desolation. New York: C. Scribner's Sons, 1948. 18

Eric Holder, Attorney General, Press Release: Justice Department Announces National Effort to Build Trust Between Law Enforcement and the Communities They Serve (September 18, 2014).

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cultures. Perhaps we will find a way to apply these lessons to the

phenomenon of mass incarceration. What I do know is that we

must find the way, and must find it together.

So the road ahead is long. In my pessimistic moments, I fear we

may never be able to find an exit strategy from the era of mass

incarceration. But the optimist in me says we have a chance of

success – if we dig deep, look in the mirror, recognize the damage

we have done, and commit ourselves to doing the truly hard work

of our democracy: ensuring that our society lives up to its ideals.

Thank you.

National Academy of Sciences

April 30, 2014